Summary:
Urgent application in terms of section 189A (13) of the Labour
Relations Act. Applicant contends that the Respondent cannot
terminate fixed term contracts without complying with section 189A.
The respondents contends that the fixed term contracts are
permitted
by a collective agreement, therefore terminable upon effluxion of
time. Whether thecollective
agreement binds the Applicant’s members in terms of section 23
(1) (d) or is capable of being extended within the
contemplation of
section 32 (1). Whether the Transnet Bargaining Council is a Council
within the contemplation of the Labour Relations
Act as amended.
Whether the Applicant has the locus standi to act on behalf of its
members. Held that the fixed term contracts
are permitted by the
collective agreement within the contemplation of section 198B (2) (c)
of the Labour Relations Act as amended.
Held that the collective
agreement binds the Applicant’s members within the
contemplation of section 23 (1) (d). Held that
Transnet Bargaining
Coucil is a Council within the contemplation of the Labour Relations
Act. Held that the Applicant has the locus
standi to launch the
application. The application dismissed with no order as to costs.

Judgment

MOSHOANA, AJ

Introduction

[1]This is an urgent application
seeking a declaratory order to the effect that the Transnet SOC Ltd
is obliged to invoke the provisions
of section 189 and/or 189A of the
Act relevant to the terminations of employment of the Applicant’s
members. Further an interdict,
interdicting Transnet SOC Ltd from
terminating and direction to comply with section 189 or 189A of the
Act. A declaratory that
the collective agreement entered into on 15
December 2015 does not bind the Applicant and its members and that it
is not a collective
agreement envisaged in section 198B(2)(c) of the
Act. Reinstatement of Applicant’s members whose employment
terminated from
28 February 2016, alternatively, compensate them.

[2]The reliefs sought are opposed by Transnet SOC Ltd. Urgency
was not challenged and, accordingly, the matter was entertained as
one
of urgency. The United National Transport Union (UNTU) filed a
notice to abide. The South African Transport and Allied Workers’
Union (SATAWU) did not file any opposition.

Background facts relevant to the determination of this matter.

[3]On or about 15 December 2015, Transnet SOC Ltd, SATAWU and
UNTU entered into a collective agreement at the Transnet Bargaining
Council.
Clause 6.1 of the collective agreement permitted Transnet
SOC Ltd to employ fixed term contract employees for a defined period
exceeding three months. Clause 6.2 provided that fixed term
contracts, which exceed three months or are renewed successively,
shall
not be deemed to be of an indefinite period. The collective
agreement defined an employee as all persons employed in Transnet in
the Bargaining Unit in terms of a fixed contract of employment. In
terms of clause 2, the agreement applied and bound all fixed
term
contract bargaining unit employees in Transnet SOC Ltd, including
those who are not members of the trade union parties to
the
agreement.

[4]At the time of the conclusion of the collective agreement,
SATAWU and UNTU jointly represented 75% of the employees within the
bargaining
unit. They both represented 69% of the entire workforce of
Transnet SOC Ltd. Following signature of the collective agreement; a
memorandum was circulated to Transnet Bargaining Unit employees. The
salient features of the said memorandum were that the agreement
would
regulate the terms and conditions of all bargaining unit Fixed Term
Contract Employees (FTC’s) with effect from 1 January
2015. The
applicant availed an example of the fixed term contract. Suffice to
assume that following the collective agreement; fixed
term contracts
were entered into. It is apparent that from 23 February 2016,
Transnet SOC Ltd gave notices of termination of the
fixed term
contracts. It was as a result of such notices that the present
application was conceived.

Evaluation

Does the Applicant have locus standi to bring the application?

[5]In law, locus standi simply means an ability of a party
to demonstrate to court sufficient connection to and harm from the
action challenged to support
that party’s participation in a
case. Transnet raised the point on the basis that the applicant was
being opportunistic in
that the vast majority of the affected
employees are members of SATAWU and UNTU. Effectively, Transnet
challenged the applicant
to demonstrate that it has members who are
affected by the termination. In rebuttal, James Viwe supported by
Nomonde Baleni testified
that hundreds if not thousands of the fixed
term employees joined the applicant. On the probabilities, I must
accept that the applicant
has members who are affected by the
termination or impending terminations.

[6]I do not see how the applicant can go to the trouble of
bringing an urgent application at an expense when it has no members
to protect.
Even if the number has not been determined, it is
probable that the applicant has members who are affected. Even if one
member
is shown to be a member and is affected, such is sufficient in
my mind. Section 200(1) of the Act, provides that a registered trade
union, the applicant being one, may act in any of the three
capacities. Those are, its own interest, on behalf of any of its
members
and in the interest of any of its members.

[7]Even if I were to accept that the applicant has no members on
whose behalf and interest it can act, I do not see how the applicant
as a registered trade union will not have an interest in a dispute
that involves mass dismissal of employees employed in an industry
that it is registered in. Section 38 of the Constitution of the
Republic of South Africa, 108 of 1996, allows anyone to approach
a
competent court and allege that a right in the Bill of Rights has
been infringed or threatened in five categories. I do not see
how in
a matter like this a registered trade union cannot comfortably bring
itself in any one or more of the five categories. Accordingly,
I am
of firm view that the applicant has the necessary locus standi.
Therefore, Transnet’s objection cannot be upheld.

Is
Transnet Bargaining Council a Council in terms of the Labour
Relations Act?

[8]Given the view that I take at the end, this issue is more
academic than real. However, the issue was sharply raised by the
applicant.
Its relevance goes to the applicability of section 32 of
the Act. In terms of section 213 of the Act, Bargaining Council means
Bargaining Council referred to in section 27. Section 27 (1) provides
that one or more registered trade unions and one or more employers’
organisation may establish a bargaining council for a sector and
area. Section 27 contemplates two parties to establish a bargaining
council. It is common cause that two parties as contemplated in the
section did not establish the Transnet Bargaining Council.
As Cassim
SC for Transnet submitted, Transnet Bargaining Council is sui
generis. I agree with this submission.

[9]An employer and not an employers’ organisation
established Transnet Bargaining Council on the one hand. However, it
is common
cause that around 1988, it was known as Labour Council. In
1991, the Labour Council was converted into Transnet Industrial
Council
registered in terms of the 1956 Act. In terms of clause 7 of
Schedule 7 of the Act, an Industrial Council or deemed to be
registered
in terms of the Labour Relations Act immediately before
the commencement of the current Act is deemed to be a bargaining
council
under the current Act. On the strength of this provision, I
am constrained to find that Transnet Bargaining Council is a council
in terms of the current Act. Accordingly, the submission by Buchanan
SC must be upheld.

Are the fixed term contracts valid and enforceable in law?

[10]Central to this matter is the validity of the fixed term
contracts entered into at the back of the 15 December 2015 collective
agreement.
As a point of departure, fixed term contracts are valid
and enforceable in terms of the common law. Section 198B, which will
be
considered later in this judgment did not alter the common law
position. The applicant’s case is that the collective agreement
of 15 December 2015, which clearly permits fixed term contracts is
not a collective agreement contemplated in section 198B(2)(c)
of the
Act. Further, the applicant’s case is that the collective
agreement does not bind their members because it has not
been
lawfully extended within the contemplation of section 32 of the Act.
On the other hand, Transnet argued that section 32 found
no
application. Instead, section 23 is applicable.

[11]Section 198B(2)(c) provides that the section does not apply to
an employee employed in terms of a fixed term contract permitted by
“any” statute, sectoral determination or collective
agreement. The legislature chose to use the word any before the
instruments that permit usage of fixed term contracts. It must then
follow that “any” collective agreement, whether
concluded
at the bargaining council or outside, is contemplated. The word ‘any’
is defined in the Shorter Oxford English
Dictionary to mean some-no
matter which, of what kind. If the legislature intended only
collective agreements concluded in a bargaining council, the
legislature should have expressly
stated so as it did in section 32.
It must be remembered that one of the powers and functions of a
bargaining council is to conclude
collective agreements. See section
28(1)(a) of the Act. I did not understand Buchanan SC to be arguing
that the agreement of 15
December 2015 is not a collective agreement.
He only persisted with an argument that it is not one contemplated in
the section
that ousts the provisions of the section.

[12]In terms of section 213, a collective agreement means a
written agreement concerning terms and conditions of employment or
any other
matter of mutual interest concluded by one or more
registered trade unions on the one hand and on the other hand one or
more employers.
The agreement of 15 December 2015 is in no doubt a
collective agreement. That being the case, it is so that that
collective agreement
permitted employment on fixed term contracts.
There is no doubt that the employees affected herein were employed on
a fixed term
contract as permitted by the collective agreement. To my
mind, the provisions of section 198B(2)(c) find application in this
matter.

[13]Section 198B(5) provides that employment in terms of a fixed
term contract concluded or renewed in contravention of subsection (3)
is deemed to be of indefinite duration. It is on the strength of this
subsection that the applicant seeks a declaratory that section
189 or
189A must be complied with to justify termination since the fixed
term contracts are deemed to be for an indefinite duration
by the
section. The simple answer to this argument is that subsections
198B(3) and (5) do not apply. Their application is removed
by section
198B(2)(c).

[14] If a positive
finding is made that the fixed term contracts through which the
employees are employed are permitted by a collective
agreement cadit
quaesto. I make such a finding. A different situation would have
arisen if the applicant had contended that the collective agreement
is
not valid and enforceable in law. Such a contention, the applicant
is not making. Therefore, a valid and enforceable agreement exists.
Clause 6.1 read with 6.2 permits the fixed term contracts.
Accordingly, the fixed term contracts are valid and enforceable in
law.

Is
section 23(1)(d) applicable?

[15]In argument, Cassim SC contended that section 23(1)(d) finds
application. Buchanan SC argued that section 23(1)(d) has not been
appropriately pleaded and cannot be relied on. Without necessarily
deciding whether the provisions of the section have been
appropriately
pleaded, I accept that one issue raised squarely by the
applicant is the binding effect of the collective agreement to its
members.
It is the duty of this court to apply the law. If the law to
be applied is found in a statute, even if not appropriately pleaded
by any of the parties, that law will be applied to resolve a dispute
between the parties. In order for this court to resolve the
disputed
binding effect of the collective agreement to the applicant’s
members, resort should be had to amongst others section
23 of the
Act, which clearly bears a caption “Legal effect of collective
agreement”

[16]It is common cause that the applicant is not a party to the
collective agreement. On that simple proposition, the agreement will
have no binding effect on it and its members unless the provisions of
the law provides otherwise. Section 23(1)(d) provides that
a
collective agreement binds employees who are not members of the
registered trade union party to the agreement if the employees
are
identified in the agreement; the agreement expressly binds the
employees and the trade unions that have, as their members,
the
majority of employees employed by the employer in the workplace. The
question that immediately arises is whether the requirements
of the
section are met?

[17]In relation to the first requirement, to my mind,
identification can either be by name or by category. It is common
cause that the
employees concerned in this matter are known as FTC’s.
The agreement clearly identifies such employees. In relation to the
second requirement, the agreement expressly binds FTC’s even if
they are not members of the Union party. Lastly, in relation
to the
final and third requirement, it is undisputed that SATAWU and UNTU
jointly represent 75% of the bargaining unit and 69%
of the entire
workforce. Therefore, it must follow that legally, the applicant
members as employees contemplated are bound by the
collective
agreement. Accordingly, the contention and argument of the applicant
is without merit and cannot be upheld. Even if
I were to accept,
which I am not, that section 23(1)(d) finds no application, I would
have sought refuge from the common law. A
collective agreement is an
agreement.

[18]The law of contract would certainly apply to it. Such denotes
interpretation of such an agreement should its application or
interpretation
be placed in dispute. In Natal Joint Municipal
Pension Fund v Endumeni Municipality,[1]
it was held that interpretation is the process of attributing meaning
to the words used in a document. It was also held that whatever
the
nature of the document, consideration must be given to the language
used in the light of the ordinary rules of grammar and
syntax; the
context in which the provision appears; the apparent purpose to which
it is directed and the material known to those
responsible for its
production.

[19]In Commercial Workers Union of SA v Tao Ying Metal
Industries and Others,[2]
it was held that the proper approach to the construction of a legal
instrument requires consideration of the document taken as
a whole.
The legality or otherwise of the collective agreement of 15 December
2015 is not called to question. Therefore, what remains
is its
interpretation as a whole.

[20]Regarding its binding effect, clause 2 specifically provides
that the agreement applies and binds all fixed term contract
bargaining
unit employees in Transnet SOC Ltd, including those
employees who are not members of the trade union parties to this
agreement.
The literal meaning of this clause is lucid and clear.
Clause 1 sets out the purpose of the agreement. It is to record the
terms
and conditions of employment of fixed term contract employees
in the bargaining unit of Transnet SOC Ltd. It seeks to regulate
fixed term contracts in the bargaining unit.

[21]Clause 4.1.5 defines an employee to mean all persons employed
in Transnet in the bargaining unit in terms of a fixed term contract.
It was never contended before me that certain clauses of the
collective agreement are unenforceable and or severable. In a rather
convoluted manner, Viwe James testified as follows:

‘In
the circumstances, even if the validity and binding nature of this
agreement should be accepted (and the Applicant most definitely
does
not accept it)…’

In response to
amongst others this convoluted evidence, Reyana Sallie testified as
follows:

‘The
first respondent and its recognised trade unions, who represent more
than 75% of all employees in the agreed bargaining unit,
concluded a
valid and binding agreement as contemplated by section 189B(2)(c) of
the LRA…’

[22]Further and in what appears to be in total contradiction of
his earlier evidence, Viwe testified that the simple answer to the
contention
that a substantive application ought to have been brought
to set aside the collective agreement is that the applicant is not
seeking
to nullify any agreement.

[23]All it desires is the confirmation of this court that it is
not binding the applicant and its members. Sadly, the applicants did
not spell out who its members are. However, regard being had to the
testimony of Viwe, the members are the employees employed in
terms of
a fixed term contract. Such employees have been identified in the
agreement and are bound by the agreement. On the papers
before me, it
is not clear who of the so-called fixed term contract employees was
or was not a member of SATAWU or UNTU. Nonetheless,
whether a
specific person was a member of the applicant at the relevant time 15
December 2015, such is of no consequence given
the provisions of the
contract and section 23(1)(d) of the Act.

[24]What brings such a member to the binding fold is the category
FTC’s. It was never contended before me that any member of the
applicant does not fall in the category of FTC’s. All the
categories mentioned by Viwe in paragraphs 9.2.1-9.2.3 of the
founding affidavit are FTC’s.

[25]A submission was made to the effect that as a court of equity,
this court must guard against unscrupulous employers who would seek
to contract out of the provisions of the Act. Unfortunately for this
argument, the Act promotes collective bargaining. The Act
allows
parties through collective bargaining to contract as it were out of
the provisions of the Act. Subsection 2 of 198B is clear.
This
section does not apply to certain situations. Such, in the context of
subsection (c), allows or permits contracting out of
the provisions
of the Act.

[26]What then remains is the question whether section 32 finds
application or not? Firstly, Transnet has disavowed the application
of
section 32. The fact that the deponent of the answering affidavit
used the term ‘extended’ is of no consequences. Buchanan
SC persisted with an argument that section 32 must apply because the
collective agreement of 15 December 2015 was concluded at
the
bargaining council. I do not agree. I have already found that section
198B(2)(c) will apply even if the agreement is concluded
at the
bargaining council or outside. In casu, it is common cause
that Transnet Bargaining Council has not asked the Minister in
writing to extend the collective agreement of
15 December 2015 to
non-parties like the applicant.

[27]The Labour Relations Act recognises the sanctity of collective
bargaining and the principle of majoritarianism. Collective
agreements
bind non-parties and non-members-individual employees.
Section 23(1)(d) applies to employees whereas section 32 is
specifically
intended for non-parties. I need not look at section 31
as implored by Cassim SC. The simple answer to the contention is that
there
is no request in writing to extend the collective agreement.
Accordingly, the argument that section 32 must apply is without merit
and cannot be upheld.

[28]There was in any event no need to seek an extension because
Transnet ensured that it is sufficiently covered by the provisions of
section 23(1)(d). If Transnet wished to have the collective agreement
to bind NUMSA as a non-party within the contemplation of
section 31,
it would have done so. However, as I have said, having covered
themselves in terms of section 23(1)(d) such would have
been
unnecessary.

[29]In the light of the above conclusions, the applicant is
entitled to the reliefs sought? A fixed term contract terminates with
affluxion
of time. If that time arrives, termination is automatic and
does not amount to a dismissal within the contemplation of section
186 of the Act. An interdict will not issue where no illegality
obtains. Section 185 of the Act provides every employee with a right
not to be unfairly dismissed. In terms of section 188(1)(b), a
dismissal is unfair if the employer fails to prove that the dismissal
was effected in accordance with a fair procedure.

[30]Section 189A(13) is a procedure available to the so-called
mass dismissal situations. It is aimed at dealing with adherence to a
fair procedure before a dismissal is effected. Therefore, in
instances where a dismissal is not to ensue, this procedure is not
available. In casu, since no dismissal is to arise, unless one
contemplated in 186(1)(b), which is not the case herein, the
provisions of section 189A(13)
does not apply.

[31]In true cases of section 186(1)(b), aspects of a fair
procedure do not obtain. What obtains is the reasonable expectation,
which
ought not to be met.

[32]On the issue of costs, I am guided by section 162 of the Act.
Guiding principles are law and fairness. In my view, this is a matter
where no order as to costs should be made.

[33]In conclusion, I am of a firm view that the applicant has the
necessary locus standi. Transnet Bargaining Council is a
Council within the contemplation of the Act. The fixed term contracts
are valid and enforceable
in law. Section 23(1)(d) is applicable as
opposed to section 32. An interdict cannot be issued. The procedure
contemplated in section
189A(13) is not available to the applicant.